All posts for the month April, 2019

As you stroll down Chapin Parkway with your Akita Inu or Norfolk Terrier, or while enjoying a cocktail in the Canterbury Woods penthouse lounge, have you ever fantasized about owning Gates Circle? Have the historic fountains, stairways and greenery captured your imagination? If so, you no longer have to be content with viewing this E.B. Green-designed masterpiece from a nearby triangular island or a stylish lofty perch. Thanks to the ingenuity of Mayor Byron Brown’s staff and City Hall sycophants, YOUR DREAM CAN NOW COME TRUE!

On April 16, 2019, Buffalo’s Common Council voted unanimously to create the “Linwood Lafayette Urban Development Action Area” [UDAA] So it would look as if they were complying with a state-mandated requirement that at least 60% of the real property within the UDAA be city-owned, the clever bureaucrats on City Hall’s ninth floor drew the UDAA’s boundary lines to include the public right-of-way on Delaware, Linwood, and Lafayette avenues, and, most importantly, all of Gates Circle!

By including Gates Circle as part of the newly formed Linwood Lafayette Urban Development Action Area, the Common Council has designated this historic public space and all the other land in the UDAA “as appropriate for urban development.”

TM Montante Development may have been shameless enough to request creation of the UDAA. But, the state law authorizing the City of Buffalo to form the UDAA does not limit who can propose a project for all or a portion of the designated area, and empowers the city to sell or lease the land “to any person, firm or corporation.” So your dream can come true!

Christian Campos, TM Montante Development President, awaits 04/16/2019 Common Council vote on UDAA.

Here’s the best part: Not only might you be chosen to own (or, if you prefer, lease for up to 99 years) Gates Circle, by creating the UDAA, the Common Council now has the power to give you incentives to encourage your participation in this program (as if you need an incentive!), including generous 20-year tax exemptions and remarkably favorable loans.

FULL DISCLOSURE: Some cranky old Buffalonians (who believe that our government officials should strive to follow the letter and spirit of the law) have insisted that the Common Council misused the state law that allows a city to designate a UDAA – General Municipal Law, Article 16. They claim that Article 16 and the creation of a UDAA was never intended as a mechanism for bailing out an under-financed developer whose plans for an ambitious private project have encountered unanticipated complications. From their perspective, Article 16’s generous incentives were designed to encourage hesitant private enterprises to partner with a municipality to correct blight and substandard conditions at city-owned properties that had been acquired through urban renewal or condemnation powers. So, if the designation of the Linwood Lafayette Urban Development Action Area is challenged in court, you may have to give Gates Circle back to the residents of the City of Buffalo. [Check out this for background information.]

COMMISSIONS: Buffalo officials aren’t likely to ask for a commission for arranging the sale of Gates Circle to you. [However, if past history is a guide, it probably wouldn’t hurt to donate generously to the campaign chests of the mayor and the various councilmembers.]

PREFACE: I really would like to engage the City of Buffalo’s Common Council in an honest, objective conversation regarding a proposal to create the “Linwood Lafayette Urban Development Assistance Area” at the site of the former Millard Fillmore Gates Circle Hospital. So far I’ve had no takers. An April 2, 2019 post here expressed my primary concerns, and was sent to the nine members of the Common Council within a day or so of its posting. None of our city legislators replied (although Councilmember David Franczyk, while serving as chair of the legislative committee’s April 9th meeting, showed awareness of the issues I had posed, and kindly allowed me an opportunity to provide a “reader’s digest” version of my comments during the public meeting). I followed up with an April 11th email message to each of the Common Councilmembers – which is set forth in full below – inviting the elected officials to contact me with any questions raised by the email or the issues I had presented orally on April 9. Perhaps my letter-to-the-editor, printed in the April 15, 2019 Buffalo News – under the headline, “Pridgen wants to offer gift that may not be deserved,” will be more effective in generating a response. I’ll update this post if and when I hear from a Councilmember.

Meanwhile, here’s what I emailed to Buffalo’s governing body on April 11, 2019:

Common Council needs objective legal advice on BURA/TM Montante’s proposed UDAA, not a “fig leaf”

Dear Council President and Councilmembers,

I am writing to you as a City of Buffalo resident who strongly believes that government officials and agencies must consistently strive to make decisions that are consistent with the letter and spirit of the law. A lesser approach to governing weakens the public’s confidence in the fairness and integrity of both the decision-makers and the decision-making process.

As a lawyer who has spent more than four decades interpreting and studying state and local laws, I am convinced that the request by BURA and TM Montante Development to designate the Linwood Lafayette Urban Development Assistance Area (UDAA) contradicts the purpose of Article 16 of New York’s General Municipal Law (GML). [Please note, I am not opposed to TM Montante Development’s redevelopment plans at the site, only to the designation of the proposed UDAA as a mechanism for restarting the stalled project.]

In my professional opinion, an objective reading of GML Section 691 (Article 16’s “policy and purposes” provision) establishes that the creation of a UDAA was never intended as a mechanism for bailing out an under-financed developer whose plans for an ambitious private project have encountered unanticipated complications. To the contrary, Article 16’s generous incentives were designed to encourage hesitant private enterprises to partner with a municipality to correct blight and substandard conditions at city-owned properties that had been acquired through urban renewal or condemnation powers.

The authority to designate UDAA districts was intended to apply to narrow and specific circumstances which are not present at the Delaware-Linwood-Lafayette site. The limited applicability of Article 16 almost certainly explains why this body has not seen a similar request for many years.

As Buffalo’s governing body, you are collectively faced with a significant issue of legislative intent that will set an important precedent throughout the city, not merely in the Ellicott District. For that reason, I ask each of you to proceed cautiously and to give careful consideration to this matter before casting a vote to approve or disapprove the request.

While I appreciate the request made by Council President Pridgen at the April 9th legislation committee meeting for a written opinion on a number of legal issues raised during that proceeding, it is imperative that this body receive objective legal advice which will provide you with a meaningful basis for rendering your determination. With all due respect to Scott Billman, Esq., it is difficult to see how BURA’s general counsel – the person who prepared the “permission request” submitted to the Common Council and City Planning Board – is in a position to provide an unbiased and neutral assessment of the legality of the proposed designation. [You may also wish to question whether the city’s law department is able to provide objective legal advice on this issue given the Corporation Counsel’s position as a member of BURA’s board of directors.]

Some might call the proposed formation of the Linwood Lafayette Urban Development Action Area (UDAA) – at the former Millard Fillmore Gates Hospital campus – a creative use of an urban renewal agency’s powers. I see it as a shameless distortion of a tool intended to correct conditions in municipally-owned slums and blighted areas.

Article 16 of the State’s General Municipal Law (GML) is entitled “Urban Development Action Area Act.” Its “policy and purposes” section recognizes the existence of “municipally-owned areas” – which were acquired through the urban renewal process, through condemnation procedures, or tax foreclosures – and which are slum or blighted, or are becoming slum or blighted areas. In order to ameliorate the blighted conditions in these municipally-owned areas, Article 16 gives cities such as Buffalo broader rights and powers to offer enhanced tax incentives and financial aid to encourage business enterprises to undertake corrective projects.

Buffalo’s Common Council has designated the Buffalo Urban Renewal Agency (BURA) as the agency authorized to carry out the purposes and provisions of GML Article 16. According to its mission statement, BURA strives to “create quality and vibrant living in Buffalo New York through neighborhood driven development projects.” Its website expressly encourages Buffalo residents “to be involvedwith BURA,” and states that its “goal is quite simple: to become a resource and partner to City residents, community development agencies, and staff in seeking results to the most pressing issues facing the Buffalo area.”

Under its current leadership, however, BURA is pursuing a different goal: to provide corporate welfare to financially-troubled private developers, in this instance, TM Montante Development and the Montante Group Companies.

BURA is controlled by Mayor Byron W. Brown. As Mayor, Brown sits as chair of BURA’s nine-member board of directors. Three of the board’s members hold high-level positions in the Brown Administration (and, therefore, serve at the pleasure of the Mayor): the Executive Director of the City’s Office of Strategic Planning (Brendan R. Mehaffy), who also functions as BURA’s Vice-Chairman; the City’s Corporation Counsel (Timothy A. Ball, Esq.); and, the City’s Commissioner of Administration and Finance (currently, Donna Estrich). The Mayor also hand-picks two citizen board members, ensuring his command over a majority of the 9-person board.

Neither the process used to prepare the proposed Linwood Lafayette UDAA, nor the substance of the proposal presented to the City of Buffalo’s Planning Board and Common Council, complies with the requirements, purposes, or intent of either the Urban Development Action Area Act, or BURA’s own mission statement:

Deficiency No. 1. The official request to create the Linwood Lafayette UDAA, submitted to the City’s Common Council and Planning Board in February 2019, states that it is BURA that “respectfully requests” the designation. However, a review of the agendas and minutes of the BURA Board of Directors – from March 2019 back to June 2018 – discloses that the BURA’s governing body never considered, much less approved, the request to proceed with the Linwood Lafayette UDAA designation. [So much for transparency and neighborhood-driven development projects.] Had the topic been placed on the board of directors’ agenda, its members (including three Common Council members), the media, and, most importantly, the public, would have known in advance of this “creative” use of GML Article 16’s incentives and financial aid.

[Note: It appears that the “permission request” filed with the Common Council was prepared by Scott Billman, BURA’s Counsel. Frankly, I would not be surprised if Mr. Billman was merely following instructions from the head of the Mayor’s Office of Strategic Planning (and, BURA Vice-Chair), Brendan Mehaffy.]

Deficiency No. 2. No objective, rational observer would describe the community within which BURA proposes to create the Linwood Lafayette UDAA as a slum or blighted area. Even the intended beneficiary of the proposed UDAA – TM Montante Development – proclaims that its proposed “Lancaster Square” project is “located in a premier urban, mixed-use neighborhood that the American Planning Association has selected as one of the 10 best neighborhoods in America.”

Deficiency No. 3. The “policy and purposes” of Article 16 is to provide incentives to eliminate slum or blight, or prevent slum or blight, in “municipally-owned areas” which were acquired pursuant to urban renewal powers, condemnation powers, or tax foreclosures. [See GML Section 691.] Article 16’s focus is not privately-owned real property. Despite this fact, BURA’s request for UDAA designation is premised on “the present condition of the privately owned real property in the area [that purportedly] impairs the growth and development of the City of Buffalo municipality because the area is at significant risk of further deterioration and blight …”

[Note: To the extent that the existing “blight” is created by demolition debris not promptly removed by TM Montante, Common Council President and Ellicott District Member Darius Pridgen and other elected and appointed officials must be asked: Why haven’t you insisted that the City’s inspection office compel the property owner to comply with Section 103-38(E) of the City of Buffalo Code? That provision requires removal of “material and debris resulting from demolition” within 5, 10, or 45 days, depending on the height of the demolished structure.]

Deficiency No. 4. Consistent with Article 16’s policy and purposes, an area designated as an “urban development action area” must be “appropriate for urban development,” and at least 60% of the UDAA must consist of city-owned real property. In a tortured effort to meet the 60% city-owned-real-property requirement of Article 16, the “creative” authors of the permission request have drawn the boundary lines of the UDAA to artificially include the entire width of adjacent public roads (that is, Delaware, Lafayette, and Linwood avenues), and historic Gates Circle. These public rights-of-way were undoubtedly not acquired through urban renewal powers, condemnation, or tax foreclosure procedures. And, in this context, they certainly cannot objectively be treated as areas “appropriate for urban development”: TM Montante is not proposing to “develop” these public streets and adjacent traffic circle. Additionally, even the site’s vacant parking garage, while clearly city-owned real estate and (it would appear) deteriorating, was built and operated for decades as a municipal parking ramp, and, presumably, is not the product of a recent condemnation or tax proceeding. [See Buffalo Courier Express article from 1975: BCE19750122 re parking ramp .]

Deficiency No. 5. Article 16 envisions the use of enhanced financial aid and tax relief as incentives to encourage otherwise hesitant business enterprises to participate in programs to correct blighted and deteriorated conditions on city-owned property. The UDAA program is not intended to bail out a private developer who enthusiastically proposes and commences a massive development project, but then, in the words of the Buffalo News, “needs a new partner and financial help to make the project work.” The Mayor-controlled BURA and Office of Strategic Planning have improperly and unwisely chosen to use BURA’s powers and resources, not to stimulate neighborhood-driven development, but to bail out a well-heeled, politically-connected developer.

[Note: Although Darius Pridgen has only received a pedestrian $200 political contribution from TM Montante Development, in the past five years TM Montante and the Montante Group (which includes TM Montante and Montante Construction) have made generous contributions to: Mayor Byron Brown ($1,000), Councilmember Joel Feroleto ($1,000), State Assemblyman Sean Ryan ($1,000), State Senator Tim Kennedy ($1,850), and State Assemblywoman Crystal Peoples ($3,500).]

Buffalo residents deserve an agency that truly focuses on “neighborhood driven” projects – rather than developer-driven handouts – and that works to benefit the public, rather than politically-astute development companies.

So, Buffalonians, get involved, and demand that your elected Common Council members deny BURA’s requested to designate the proposed Linwood Lafayette UDAA.

P.P.S. Likewise, the Linwood Lafayette UDAA proposal is not the first time Buffalo’s “leaders” have embraced an unworkable and inappropriate plan for this site. See Kaleida Health’s 7-12-2013 press release announcing Chason Affinity’s failed effort to recruit a veterinary school to the former Millard Fillmore Gates Circle campus: Kaleida press release 07-12-13 re Gates Circle

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